Last September, China deployed six surveillance ships in response to the Japanese government’s attempt to buy the disputed Senkaku islands, which the Chinese call the Daioyus, from their current owner, a wealthy Japanese family. Both countries are signatories to the United Nations Convention of the Law of the Sea, better known as the Law of the Sea Treaty (LOST), which celebrated its 30th anniversary this year. LOST was supposed to settle disputes between countries over maritime boundaries, but China and Japan seem not to have gotten the memo.

More recently the Chinese province of Hainan ratified a new law that gives Hainanese officials jurisdiction to board vessels in an area where China currently has joint sovereignty alongside the Philippines, Vietnam, and Taiwan. Association of Southeast Asian Nations (ASEAN) Secretary General Surin Pitsuwan recently said that this new legislation could seriously aggravate tensions among these Asian nations and pose a threat to global trade.

American supporters of LOST argue that the treaty will reduce international tensions over disputed territories by helping to resolve potential conflicts. They also argue that the treaty will provide the legal certainty that U.S. companies need to exploit sub-sea floor resources that would otherwise go to competing nations like Russia and China, which are signatories to LOST. Five Republican former Secretaries of State—Henry Kissinger, George Shultz, James Baker III, Colin Powell, and Condoleezza Rice—argued in a May 2012 Wall Street Journal op-ed, “By becoming party to the treaty, we would strengthen our capacity to influence deliberations and negotiations in other nations’ attempts to extend their continental boundaries.” Yet, the problem lies in the treaty’s process itself.

LOST asserts jurisdiction over maritime boundaries that have been recognized and enforced for centuries. The treaty does this by creating a new global governing body—ominously named the Authority—for the high seas or “the Area,” which would remain “the common heritage of mankind.” To settle international disputes, LOST created the International Tribunal for the Law of the Sea (ITLOS).

LOST was created to settle maritime disputes but has failed to do so. In fact, the dispute would probably not exist with LOST, which made the ownership of a group of small rocks a critical issue in determining the extent of the “exclusive economic zones” it sets out for signatory countries. Now it appears that at least one party, seemingly frustrated with the process, plans to return to gunboat diplomacy.

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